Part VI Discovery and Document Production, 16 Discovery in Arbitration: Can Parties Use 28 USC § 1782 to Circumvent the Process Ordered by the Arbitral Tribunal? »
Alexander YanosFrom: Defining Issues in International Arbitration: Celebrating 100 Years of the Chartered Institute of Arbitrators
Edited By: Julio César Betancourt
This chapter focuses on Section 1782 of Title 28 of the United States Code (USC). One of the stated purposes of 28 USC § 1782 (‘section 1782’) is to provide ‘judicial assistance to foreign or international tribunals’. However, the profound differences between the broad form of discovery available under section 1782 and the narrow form of discovery generally available in international arbitration may create the possibility of conflicts between the process envisioned by the arbitral tribunal and the process made available to parties by the US judiciary. It argues that section 1782 is subject to a strong presumption in favour of discovery. When a foreign litigant wants discovery, but the foreign tribunal may not, courts typically err on the side of the foreign litigant.
Brian King, Alexander YanosFrom: International Commercial Arbitration in New York (2nd Edition)
Edited By: James H. Carter, John Fellas
This chapter outlines the unique differences in arbitrations involving sovereigns, as opposed to those involving private individuals, in particular discussing the strategies employed by counsel to address these differences. The chapter shows how private parties seek to insert certain provisions in the arbitration agreement to facilitate enforcement of an eventual award. At the time a dispute arises, private parties go to the New York courts to attempt to attach sovereign assets, and litigants also look to their arbitral tribunal for interim measures. After the award has been rendered, private parties attempt to attach sovereign assets before the relevant award is recognized by the New York courts. After recognition of the applicable award, private parties would then seek to identify attachable commercial assets and seize them.